Georgia Power Co. v. Davis

• Citation: 160 S.E. 690,43 Ga.App. 791
• Decision Date: 20 July 1931
• Docket Number: 21131,21132.
• Parties: GEORGIA POWER CO. v. DAVIS. DAVIS v. GEORGIA POWER CO.
• Court: United States Court of Appeals (Georgia)

160 S.E. 690

43 Ga.App. 791

GEORGIA POWER CO. v. DAVIS.

DAVIS v. GEORGIA POWER CO.

Nos. 21131, 21132.

Court of Appeals of Georgia, Second Division

July 20, 1931

Rehearing Denied Sept. 18, 1931.

Syllabus by the Court.

Ordinary held without authority to act as guardian for minor for receiving money upon unliquidated claim for damages arising in tort (Laws 1918, p. 198, § 1).

The Act of August 20, 1918 (Ga. Laws 1918, p. 198), making the ordinaries of the several counties of this state "the legal custodians and distributors of all money due and owing to any minor child or children, who have no legal and qualified guardian, to receive and collect all such money due or owing such minor or minors arising from insurance policies, benefit societies, legacies, inheritances, or from any other source; provided, the amount due such minor or minors from all sources does not exceed the amount of five hundred dollars" (section 1), confers no authority upon an ordinary to act as guardian for a minor for the purpose of receiving money upon an unliquidated claim for damages arising in tort.

In minor's suit for injuries, instruction to disregard settlement with ordinary as guardian if defendant was liable in sum greater than $500 held not harmful to defendant (Laws 1918, p. 198, § 1).

This being a suit by a minor by next friend, to recover damages for a tort alleged to have been committed by the defendant upon the person of such minor, and the defendant having pleaded in bar a settlement alleged to have been made by the defendant with the ordinary as the guardian of such minor, an instruction that the jury should disregard such settlement if they concluded that the defendant was actually liable to the plaintiff in a sum greater than $500, was not harmful to the defendant.

Additional Syllabus by Editorial Staff.

Words "money due and owing," in statutes authorizing ordinary to receive moneys for minors, mean "money demand" and signify demand for fixed amount (Laws 1918 p. 198, § 1).

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Action by Beatrice L. Davis, by next friend, against the Georgia Power Company. There was a judgment for plaintiff, motions of both parties for new trial were overruled, and defendant brings error, and plaintiff also assigns error and sues out bill of exceptions.

Judgment affirmed on defendant's exceptions, and plaintiff's bill of exceptions dismissed.

Colquitt Parker, Troutman & Arkwright, of Atlanta, for plaintiff in error.

Geo. & John L. Westmoreland and Jos. M. Jones, all of Atlanta, for defendant in error.

BELL J.

Beatrice L. Davis, by her mother as next friend, brought a personal injury suit against Georgia Power Company, in which the jury found a verdict in favor of the plaintiff for $600. Both parties moved for a new trial, and both motions were overruled; whereupon the plaintiff and the defendant each sued out a bill of exceptions to this court. Whether the plaintiff's bill of exceptions is in reality a cross-bill, it is so described by its own language, and we infer that the attorneys for the plaintiff desire a consideration of this bill only in case of a reversal of the judgment upon the bill of exceptions brought by the power company, or, in other words, that this court is expected to treat the plaintiff's bill of exceptions as a cross-bill, subject to the general rule that a cross-bill will be dismissed upon affirmance of the judgment excepted to in a main bill, where the case is not again to be tried in the court below.

The motion for a new trial filed by the power company contained the usual general grounds, and two special grounds complaining of errors in the charge of the court. But the general grounds are not insisted upon, and the only question which we are called upon to decide on this motion is in relation to the act of August 20, 1918 (Ga. Laws 1918, p. 198), providing that the ordinaries of the several counties of this state shall act as the legal custodians and distributors of all moneys due and owing to minors in certain instances. This act was amended in 1927, but the amendment is not here material. Ga. Laws 1927, p. 256.

The defendant pleaded that on the application of the plaintiff's father, she having no legal guardian, the ordinary assumed the duties of guardian, and that the defendant, through such guardian, paid to the plaintiff $25 "in full satisfaction, settlement and release from said plaintiff; *** that said sum of $25 was paid into the ordinary's court under order and judgment of the ordinary; *** [and] that the payment of said sum together with the order and judgment entered therein" amounted to an accord and satisfaction and to a full release and bar against the present cause of action.

The material provisions of the act of 1918 are as follows: "The ordinaries of the several counties of this State *** are hereby made and constituted the legal custodians and distributors of all money due and owing to any minor child or children, who have no legal and qualified guardian, to receive and collect all such money due or owing such minor or minors arising from insurance policies, benefit societies, legacies, inheritances, or from any other source; provided, the amount due such minor or minors from all sources does not exceed the amount of five hundred dollars, without any appointment or qualifying order, he is fully authorized to take charge of such money or funds for such minor or minors, by virtue of his office as ordinary in the county of the residence of such minor or minors, and the certificate of such ordinary, that no legally qualified guardian has been appointed for such minor or minors, and that the estate of such minor or minors, from all sources, does not exceed the amount of five hundred dollars ($500.00) shall be conclusive, and shall be sufficient authority to justify any debtor or debtors in making payment of moneys due as aforesaid, claims therefor having been made by such ordinary." Section 1.

The defendant contends that the court erred in charging the jury that, if the defendant was due the plaintiff a sum in excess of $500 because of the injuries complained of, "then the court of ordinary would not have jurisdiction over the amount, because such jurisdiction is limited to amounts involving $500 or less, and the proceedings in the court of ordinary would not bind the plaintiff, and would not relieve the defendant, in so far as this phase of the case is concerned." This charge was assigned as error "for the reason that the question of the amount of settlement up to $500 was a question to be decided in the court of ordinary, and the court of ordinary having determined said question it could not be thus reviewed by a jury in the superior court, upon the ground that the jury might think the plaintiff was entitled to recover from the defendant an amount in excess of $500"; and for the further reason "that it took away from the party settling in the ordinary's court the question of whether or not the settlement made in the ordinary's court was or was not a binding settlement." The defendant contended also that the charge was error because "it rendered practically nugatory settlement made in the court of ordinary and left the matter of settlement in the court of ordinary to be determined by the opinion of a jury that might wish to award a greater amount than that fixed and agreed upon in the ordinary's court."

The above is sufficient to illustrate the contentions of the defendant, without a further statement of the specific grounds of error insisted upon.

We do not think the act of 1918 was intended to cover a claim of this sort. There are two elements of description either of which would exclude the idea of a claim for damages for personal injuries. The language "all money due and owing" cannot reasonably be applied to a right of action in tort. In their ordinary signification these words are the equivalent of the phrase "money demand," which means a demand for a fixed amount of money, as contradistinguished from damages. 40 C.J. 1493. The language under consideration more naturally suggests a civil debt or obligation, and the word ""debt" has been defined to be "a sum of money due by a certain and express agreement. A debt in its general sense is a specific sum of money which is due or owing from one person to another, and denotes, not only the obligation of one person to pay, but the right of the other party to receive and enforce payment by judicial action. It is that which one is bound to pay to or perform for another; that which one is obliged to do or suffer. 8 Am. & Eng. Ency. Law [(2d Ed.)] 982; 2 Words and Phrases [First Series, page], 1864; 1 Words and Phrases, Second Series [page], 1226." Dewey v. Denson, 31 Ga.App. 352, 355, 120 S.E. 805, 807.

The words contained in this portion of the act, whether considered separately or collectively, cannot reasonably be interpreted as including a claim for unliquidated damages based upon an ex delicto cause of action.

The second element of description is that which relates to the cause or source of the liability in favor of the minor. The reference is to "all such money due or owing such minor or minors arising from insurance policies, benefit societies legacies, inheritances, or from any other source." The expression "from any other source" is the only language here which in any possible view could be relied on as including a cause of action in tort, but it is a well-settled rule of construction "that where a statute enumerates by name certain specific things, and concludes with a general term of enlargement, this latter term is construed as being ejusdem generis with the things named." Grier v. State, 103 Ga. 428, 429, 30 S.E. 255, 256; Standard Oil Co. v....